an open-source thought experiment in psychedelic law and policy

Massachusetts Attorney General issues excellent legal ruling – for New York

I thank Adam Scavone for bringing to my attention two recent articles from Massachusetts again focusing on what I have called in other posts, e.g. Cannabis Invades Massachusetts, the “frontline” in cannabis law: the legality of attempts by local government to ban the operation of the supply-side of the cannabis industry licensed by state law.

The first story, which came out on Monday, discusses identical bans on dispensaries enacted by three Massachusetts towns, Reading, Wakefield, Melrose, which together form a regional health district. It presents interviews with (a) the regional health director for those three localities and (b) a lawyer with the ACLU. This story came out prior to the news in the second story yesterday that the state Attorney General struck down the Wakefield ban.

The reasoning of the regional health director is highly suspect for many reasons, among them

1. The reference to federal money flowing into the district’s substance abuse prevention programs can be construed in two ways: (a) the district receives federal funding for “prevention” that could be jeopardized if the district sits back and allows distribution of cannabis and (b) condoning the use of cannabis for any purpose will undermine its “prevention” efforts.

I cannot address fully now the immense significance and Orwellian aspects of “prevention” as a paradigm for social policy and social control, especially in the counter-revolution of the late 1970s against cannabis law reform (which counter-revolution is called, in political science terms, the emergence of “prevention” as the primary response to substance abuse). Suffice it to say for the moment that in a sense, the “substance abuse prevention” field shares with the substance abuse treatment field the current monopoly on healthcare funding slotted towards cannabis, since cannabis is legally defined as a drug of abuse (i.e. the federal government has declared that it will not consider any of the existing evidence of medical use). Note that “prevention” is a funding track for both the health care sector and law enforcement – surveillance cameras and police on the streets are considered form of “prevention” under the logic of the prohibitionist bureaucracy. Drug-testing is also a form of “prevention.” You can see how powerful the “prevention” lobby is.

But in practice, could the presence of dispensaries really lead to the loss of federal funding for the district? If in fact that really is Ms. Clay’s concern, the interview provides no basis for it, leading us to the second possible meaning of her comment, one which is more likely – the classic invocation of protecting the youth as the rationale for opposing any liberalization of cannabis laws.

A bedrock theory of cannabis prevention (which, in turn, is the bedrock of drug prohibition generally) is that no one should ever say that there could a non-injurious use of cannabis (let alone a therapeutic use of cannabis) because it will lead youth astray, i.e. it will undermine the abstinence-only model. In this worldview, a successful campaign against drug addiction requires censoring the idea that cannabis could be OK in some way because that idea is dangerous – by abating the message that “one puff and you’re hooked – and then you’re dead,” you confuse youth. This model prevailed during the Reagan-Bush I continuum. It has taken a lot of hits since 1996 when Californians passed Proposition 215 – but it is still around, as can be seen from Ms. Clay’s comment. Never mind whether it is accurate to deny therapeutic uses of cannabis and never mind the heavy question of whether the total prohibition of cannabis/abstinence-only model is and has always been a very bad idea. This position can be translated as “we are heavily invested in a flawed policy so we must keep pretending it is not flawed.”

2. There is the classic ludicrous reference to what has happened in other unnamed (unknown?) jurisdictions that legalized a medical cannabis market. What can anyone say without knowing those jurisdictions are? If we know don’t which jurisdictions then we cannot know what their laws provide (and cannot check as a factual matter what actually happened). The obvious logical meltdown in this argument is that state laws are different – problems resulting in one state (if they actually resulted) i.e. CALIFORNIA, could be the result of a different legal system which the newer legal systems are intended to avoid. If so then the clear productive next step is designing efficacy assessments for the legal systems, rating them and adopting and adapting them. No-brainer, that one. (In fairness, the interview with Ms. Clay was likely edited for publication so we don’t know what she actually said.)

3. There is the explanation that the towns don’t know what the regulations enacted by the state will be and maybe they won’t be tight enough.

However, where there is a will there is a way and presumably, as pointed out by the ACLU lawyer, the localities are free to submit their comments to the state executive branch.

They could also enlist state legislators on the relevant committees supervising the health department to monitor the regulations as they are being drafted to ensure they are effective and protect the public health and welfare.

They could also begin convening hearings for their own constituents to discuss not how to ban dispensaries but how to integrate dispensaries into their communities.

This latter process is the important work of determining, under the state law of “preemption,” in what manner and to what extent local governments can regulate beyond what the state provides. It can and should be determined at the outset of any discussion of state law, e.g. New York.

That is the task: find a way to solve the problem, don’t insist it is impossible.

The ACLU lawyer made several interesting points in response. The matter on which I wish to comment is her statement that the towns may not enact outright bans on what the state permits. I understand from my research that that basic principle of state-local legal relations is what applies in New York as well. Since, as of this writing, the proposed Gottfried-Savino bill does not build local input into its procedure for regulating the supply side (which will ALL be done at the state level by the Department of Health), I believe that it will be difficult for a local government in New York to enact a complete ban that will survive a legal challenge. The only place in the bill I see that affords local control is the requirement that the supply-side player demonstrate that it has the right to use sufficient land to conduct its operations, which to me means a certificate of occupancy or some other proof of compliance with local zoning law.

It was not fair to present a lawyer in counterpoint to the health director – the more useful debate would be between the lawyers for the three towns and ACLU lawyer. That should be the next story. Maybe it will take place in court documents presented to a judge by a local government and a private litigant.

The next story reports that the Massachusetts Attorney General struck down the ban. (I am not aware of any similar mechanism in New York for invalidating a local law; in the New York decisions I have seen local laws are upheld or invalidated by judges as “preempted” by state law after someone, e.g. a market participant, seeks a declaratory injunction and an injunction.) The summary appearing there indicates that the AG followed the reasoning stated by the ACLU lawyer.

The AG also upheld a moratorium, i.e. a temporary ban, on dispensaries by another locality. The comments of the head of the Massachusetts Municipal Association on that ruling confirm my belief that local law, specifically zoning, is the name of the game in implementing legal change.

Massachusetts is a model for New York. I think it clear that the task at hand for New Yorkers is to begin now designing the local regulatory systems and defining the relationships between state and local government that will facilitate the implementation of a viable legal cannabis market, whether “medical” or general adult use.